Scorecard: How Many Rights Have Americans REALLY Lost?

ZeroHedgePreface: While a lot of people talk about the loss of our
Constitutional liberties, people usually speak in a vague, generalized
manner … or focus on only one issue and ignore the rest.This post explains the liberties guaranteed in the Bill of Rights
– the first 10 amendments to the United States Constitution – and
provides a scorecard on the extent of the loss of each right.

Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.

Of course, Muslims are more or less subject to a separate system of justice in America.And 1st Amendment rights are especially chilled when power has become so concentrated that the same agency which spies on all Americans also decides who should be assassinated.Second AmendmentThe 2nd Amendment states:

A
well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.

Like
many academics, I was happy to blissfully ignore the Second Amendment.
It did not fit neatly into my socially liberal agenda.***It is hard to read the Second Amendment and not honestly conclude
that the Framers intended gun ownership to be an individual right. It is
true that the amendment begins with a reference to militias: “A well
regulated militia, being necessary to the security of a free state, the
right of the people to keep and bear arms, shall not be infringed.”
Accordingly, it is argued, this amendment protects the right of the
militia to bear arms, not the individual.Yet, if true, the Second Amendment would be effectively declared a
defunct provision. The National Guard is not a true militia in the sense
of the Second Amendment and, since the District and others believe
governments can ban guns entirely, the Second Amendment would be read
out of existence.***More important, the mere reference to a purpose of the Second
Amendment does not alter the fact that an individual right is created.
The right of the people to keep and bear arms is stated in the same way
as the right to free speech or free press. The statement of a
purpose was intended to reaffirm the power of the states and the people
against the central government. At the time, many feared the federal
government and its national army. Gun ownership was viewed as a
deterrent against abuse by the government, which would be less likely to
mess with a well-armed populace.Considering the Framers and their own traditions of hunting and self-defense, it
is clear that they would have viewed such ownership as an individual
right — consistent with the plain meaning of the amendment.None of this is easy for someone raised to believe that the
Second Amendment was the dividing line between the enlightenment and the
dark ages of American culture. Yet, it is time to honestly reconsider
this amendment and admit that … here’s the really hard part … the NRA may have been right.
This does not mean that Charlton Heston is the new Rosa Parks or that
no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

The gun control debate – including which weapons and magazines are banned – is still in flux …Third Amendment

The 3rd Amendment prohibits the government forcing people to house soldiers:

No
Soldier shall, in time of peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.

Hey … we’re still honoring one of the Amendments! Score one for We the People!

The
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

The domestic use of drones to spy on Americans clearly violates the Fourth Amendment and limits our rights to personal privacy.

Paul introduced a bill
to “protect individual privacy against unwarranted governmental
intrusion through the use of unmanned aerial vehicles commonly called
drones.”Emptywheel notes in a post entitled “The OTHER Assault on the Fourth Amendment in the NDAA? Drones at Your Airport?”:

***As the map above makes clear–taken from this 2010 report–DOD [the Department of Defense] plans to have drones all over the country by 2015.

Many police departments are also using drones to spy on us. As the Hill reported:

At
least 13 state and local police agencies around the country have used
drones in the field or in training, according to the Association for
Unmanned Vehicle Systems International, an industry trade group. The
Federal Aviation Administration has predicted that by the end of the
decade, 30,000 commercial and government drones could be flying over
U.S. skies.***“Drones should only be used if subject to a powerful framework that
regulates their use in order to avoid abuse and invasions of privacy,”
Chris Calabrese, a legislative counsel for the American Civil Liberties
Union, said during a congressional forum in Texas last month.He argued police should only fly drones over private property if they
have a warrant, information collected with drones should be promptly
destroyed when it’s no longer needed and domestic drones should not
carry any weapons.He argued that drones pose a more serious threat to privacy than
helicopters because they are cheaper to use and can hover in the sky for
longer periods of time.A congressional report earlier this year predicted that drones could
soon be equipped with technologies to identify faces or track people
based on their height, age, gender and skin color.

The American government is collecting and storing virtually every phone call, purchases, email, text message, internet searches, social media communications, health information, employment history, travel and student records, and virtually all other information of every American.Some also claim that the government is also using facial recognition software and surveillance cameras to track where everyone is going. Moreover, cell towers track where your phone is at any moment, and the major cell carriers, including Verizon and AT&T, responded to at least 1.3 million law enforcement requests for cell phone locations and other data in 2011. (And – given that your smartphoneroutinely sends your location information back to Apple or Google – it would be child’s play for the government to track your location that way.) Your iPhone, or other brand of smartphone is spying on virtually everything you do (ProPublica notes: “That’s No Phone. That’s My Tracker“).As the top spy chief at the U.S. National Security Agency explained
this week, the American government is collecting some 100 billion
1,000-character emails per day, and 20 trillion communications of all
types per year.He says that the government has collected all of the communications
of congressional leaders, generals and everyone else in the U.S. for the
last 10 years.He further explains that he set up the NSA’s system so that all of
the information would automatically be encrypted, so that the government
had to obtain a search warrant based upon probably cause before a
particular suspect’s communications could be decrypted. [He
specifically did this to comply with the Fourth Amendment's prohibition
against unreasonable search and seizure.] But the NSA now collects all
data in an unencrypted form, so that no probable cause is needed to view
any citizen’s information. He says that it is actually cheaper and
easier to store the data in an encrypted format: so the government’s
current system is being done for political – not practical – purposes.He says that if anyone gets on the government’s “enemies list”, then
the stored information will be used to target them. Specifically, he
notes that if the government decides it doesn’t like someone, it
analyzes all of the data it has collected on that person and his or her
associates over the last 10 years to build a case against him.

Transit
authorities in cities across the country are quietly installing
microphone-enabled surveillance systems on public buses that would give
them the ability to record and store private conversations….The systems are being installed in San Francisco, Baltimore, and
other cities with funding from the Department of Homeland Security in
some cases ….The IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city.***The systems use cables or WiFi to pair audio conversations
with camera images in order to produce synchronous recordings. Audio and
video can be monitored in real-time, but are also stored
onboard in blackbox-like devices, generally for 30 days, for later
retrieval. Four to six cameras with mics are generally installed
throughout a bus, including one near the driver and one on the exterior
of the bus.***Privacy and security expert Ashkan Soltani told the Daily that the
audio could easily be coupled with facial recognition systems or audio
recognition technology to identify passengers caught on the recordings.

America welcomes a new brand of smart street lightning systems:
energy-efficient, long-lasting, complete with LED screens to show ads.
They can also spy on citizens in a way George Orwell would not have
imagined in his worst nightmare.­With a price tag of $3,000+ apiece, according to an ABC report, the
street lights are now being rolled out in Detroit, Chicago and
Pittsburgh, and may soon mushroom all across the country.

Part of the Intellistreets systems made by the company Illuminating Concepts, they have a number of “homeland security applications” attached.

Each has a microprocessor “essentially similar to an iPhone,” capable of wireless
communication. Each can capture images and count people for the police
through a digital camera, record conversations of passers-by and even
give voice commands thanks to a built-in speaker.

Ron Harwood, president and founder of Illuminating Concepts, says he
eyed the creation of such a system after the 9/11 terrorist attacks and
the Hurricane Katrina disaster. He is “working with Homeland Security” to deliver his dream of making people “more informed and safer.”

Normally under the Fourth Amendment of the U.S. Constitution, the
American people are not generally subject to random and arbitrary stops
and searches.

The border, however, has always been an exception. There, the
longstanding view is that the normal rules do not apply. For example
the authorities do not need a warrant or probable cause to conduct a
“routine search.”

But what is “the border”? According to the government, it is a
100-mile wide strip that wraps around the “external boundary” of the
United States.

As a result of this claimed authority, individuals who are far away
from the border, American citizens traveling from one place in America
to another, are being stopped and harassed in ways that our Constitution
does not permit.

Border Patrol has been setting up checkpoints inland — on highways
in states such as California, Texas and Arizona, and at ferry terminals
in Washington State. Typically, the agents ask drivers and passengers
about their citizenship. Unfortunately, our courts so far have
permitted these kinds of checkpoints – legally speaking, they are
“administrative” stops that are permitted only for the specific purpose
of protecting the nation’s borders. They cannot become general
drug-search or other law enforcement efforts.

However, these stops by Border Patrol agents are not remaining
confined to that border security purpose. On the roads of California
and elsewhere in the nation – places far removed from the actual border –
agents are stopping, interrogating, and searching Americans on an
everyday basis with absolutely no suspicion of wrongdoing.

The bottom line is that the extraordinary authorities that the
government possesses at the border are spilling into regular American
streets.

Border
agents don’t need probable cause and they don’t need a stinking warrant
since they don’t need to prove any reasonable suspicion first. Nor,
sadly, do two out of three people have First Amendment protection; it is
as if DHS has voided those Constitutional amendments and protections
they provide to nearly 200 million Americans.***Don’t be silly by thinking this means only if you are physically
trying to cross the international border. As we saw when discussing the
DEA using license plate readers and data-mining to track Americans movements, the U.S. “border” stretches out 100 miles beyond the true border. Godfather Politics added:

But
wait, it gets even better! If you live anywhere in Connecticut,
Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New
Hampshire, New Jersey or Rhode Island, DHS says the search zones
encompass the entire state.

Immigrations and Customs Enforcement (ICE) and Customs and Border
Protection (CBP) have a “longstanding constitutional and statutory
authority permitting suspicionless and warrantless searches of
merchandise at the border and its functional equivalent.” This applies
to electronic devices, according to the recent CLCR “Border Searches of
Electronic Devices” executive summary [PDF]:

Fourth Amendment

The overall authority to conduct border searches without suspicion or
warrant is clear and longstanding, and courts have not treated searches
of electronic devices any differently than searches of other objects.
We conclude that CBP’s and ICE’s current border search policies comply
with the Fourth Amendment. We also conclude that imposing a requirement
that officers have reasonable suspicion in order to conduct a border
search of an electronic device would be operationally harmful without
concomitant civil rights/civil liberties benefits. However, we do think
that recording more information about why searches are performed would
help managers and leadership supervise the use of border search
authority, and this is what we recommended; CBP has agreed and has
implemented this change beginning in FY2012.

First Amendment

Some critics argue that a heightened level of suspicion should be
required before officers search laptop computers in order to avoid
chilling First Amendment rights. However, we conclude that the laptop
border searches allowed under the ICE and CBP Directives do not violate
travelers’ First Amendment rights.

The ACLU said, Wait one darn minute! Hello, what happened to the
Constitution? Where is the rest of CLCR report on the “policy of combing
through and sometimes confiscating travelers’ laptops, cell phones, and
other electronic devices—even when there is no suspicion of
wrongdoing?” DHS maintains it is not violating our constitutional
rights, so the ACLU said:

If
it’s true that our rights are safe and that DHS is doing all the things
it needs to do to safeguard them, then why won’t it show us the results
of its assessment? And why would it be legitimate to keep a report
about the impact of a policy on the public’s rights hidden from the very
public being affected?

***As ChristianPost wrote,
“Your constitutional rights have been repealed in ten states. No, this
isn’t a joke. It is not exaggeration or hyperbole. If you are in ten
states in the United States, your some of your rights guaranteed by the
Bill of Rights have been made null and void.”The ACLU filed
a Freedom of Information Act request for the entire DHS report about
suspicionless and warrantless “border” searches of electronic devices.
ACLU attorney Catherine Crump said “We hope to establish that the
Department of Homeland Security can’t simply assert that its practices
are legitimate without showing us the evidence, and to make it clear
that the government’s own analyses of how our fundamental rights apply
to new technologies should be openly accessible to the public for review
and debate.”Meanwhile, the EFF has tips
to protect yourself and your devices against border searches. If you
think you know all about it, then you might try testing your knowledge
with a defending privacy at the U.S. border quiz.

Wired pointed out in 2008 that the courts have routinely upheld such constitution-free zones:

Federal
agents at the border do not need any reason to search through
travelers’ laptops, cell phones or digital cameras for evidence of
crimes, a federal appeals court ruled Monday, extending the government’s
power to look through belongings like suitcases at the border to
electronics.***The 9th U.S. Circuit Court of Appeals sided with the
government, finding that the so-called border exception to the Fourth
Amendment’s prohibition on unreasonable searches applied not just to
suitcases and papers, but also to electronics.***Travelers should be aware that anything on their mobile devices can
be searched by government agents, who may also seize the devices and
keep them for weeks or months. When in doubt, think about whether online
storage or encryption might be tools you should use to prevent the feds
from rummaging through your journal, your company’s
confidential business plans or naked pictures of you and your-of-age
partner in adult fun.

No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation.

Sixth AmendmentThe 6th Amendment guarantees the right to hear the criminal charges
levied against us and to be able to confront the witnesses who have
testified against us, as well as speedy criminal trials, and a public
defender for those who cannot hire an attorney:

In
all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.

In
Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.

The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people.

Two of the central principles of America’s Founding Fathers are:

(1) The government is created and empowered with the consent of the peopleand(2) Separation of powers

Today, most Americans believe
that the government is threatening – rather than protect – freedom, and
that it is no longer acting with the “consent of the governed”.And the federal government is trampling the separation of powers by
stepping on the toes of the states and the people. For example, former
head S&L prosecutor Bill Black – now a professor of law and
economics – notes:

The
Federal Reserve Bank of New York and the resident examiners and
regional staff of the Office of the Comptroller of the Currency [both]
competed to weaken federal regulation and aggressively used the
preemption doctrine to try to prevent state investigations of and
actions against fraudulent mortgage lenders.

Indeed, the federal government is doing everything it can be stick its nose into every aspect of our lives … and act like Big Brother.Conclusion: While a few of the liberties enshrined in the Bill of
Rights still exist, the overall scorecard of the government’s respect
for our basic freedom is a failinggrade.